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Outsourcing the Law

A Philosophical Perspective on Regulation

Pauline Westerman

Not only can services such as cleaning and catering be outsourced, but also governmental tasks such as making, applying and enforcing the law. Outsourcing the law is usually recommended for its cost-efficiency, flexibility, higher rates of compliance and its promise of deregulation. However, lawmaking is not the same as cleaning and rules are more than just tools to achieve aims. In this timely book, Pauline Westerman analyses this outsourcing from a philosophical perspective.
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Chapter 2: The structure of the rules

Pauline Westerman

Extract

Chapter 2 analyses the threefold structure of the norms that are developed if regulation is outsourced. The characteristic format is discernible in the framework directive: it consists of an aspirational norm, indicating the goal that should be achieved, an implementation norm requiring the norm-addressee to take measures or to draft rules in order to achieve that goal and an accountability norm, demanding regular reports on the progress made. For a large part this threefold structure is reproduced at each level of the outsourcing chain. At each (lower) level of norm-addressees, goals are formulated, albeit in a more concrete form, accompanied by performance indicators which specify the targets to be reached. At each level, implementation and accountability are also concretised and specified. The result is a great number of rules which mainly prescribe the state of affairs that should be reached, and which leave underdetermined how and by whom this result should be obtained. Furthermore, the typical structure of norms invites to a regime of risk liability and effectively reverses the burden of proof.

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